Gardiner v. Corizon Health, Inc.

• Decision Date: 24 February 2022
• Docket Number: 2:21-cv-167
• Parties: KEITH EDWARD GARDINER, Plaintiff, v. CORIZON HEALTH, INC. et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

KEITH EDWARD GARDINER, Plaintiff, v. CORIZON HEALTH, INC. et al., Defendants.

No. 2:21-cv-167

United States District Court, W.D. Michigan, Northern Division

February 24, 2022

OPINION

Maarten Vermaat United States Magistrate Judge

This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff previously sought and was granted leave to proceed in forma pauperis. (ECF No 11.) Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 10.)

This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997). Service of the complaint on the named defendant(s) is of particular significance in defining a putative defendant's relationship to the proceedings.

“An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), by requiring courts to review and even resolve a plaintiff's claims before service, creates a circumstance where there may only be one party to the proceeding-the plaintiff-at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov't, 212 Fed.Appx. 418 (6th Cir. 2007) (stating that “[p]ursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal”).

Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way that they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent from the defendants[; h]owever, because they had not been served, they were not parties to the action at the time the magistrate entered judgment.”).^[1]

Under the PLRA, the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff's Eighth Amendment claims against Defendants Gasperich, Lancour, and Schroeder for failure to state a claim. The Court will dismiss Plaintiff's state law claims against Defendants Gasperich, Lancour, and Schroeder without prejudice to his ability to bring those claims in state court. Plaintiff's Eighth Amendment and state law claims against Defendants Corizon Health, Inc. (Corizon), Bedient, Bergh, Wright, and Westcomb remain in the case. Additionally, the Court will deny Plaintiff's motion to serve the complaint (ECF No. 3) as premature and will deny Plaintiff's motion for the appointment of counsel (ECF No. 4).

Discussion

I. Factual Allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Alger Correctional Facility (LMF) in Munising, Alger County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues Corizon; Nurses Unknown Bedient, Unknown Bergh, Unknown Wright, and Unknown Gasperich; Physician's Assistant (PA) Unknown Westcomb; Grievance Coordinator Unknown Lancour; and Warden Unknown Schroeder. (Compl., ECF No. 1, PageID.1.)

In Plaintiff's complaint, he alleges that on August 16, 2020, “while ‘merely walking,' the Plaintiff's knee ‘locked' into a bent position.” (Id., PageID.5.)^[2] When this happened, Plaintiff dropped to the ground “in excruciating pain, ” and he could not stand or straighten his leg. (Id.) Thereafter, Plaintiff “smacked his knee/leg repeatedly to ‘put it back into place, '” and then his knee “popped” into place. (Id.) A correctional officer brought a wheelchair for Plaintiff; however, Plaintiff states that “[t]he chair was not needed.” (Id.) Plaintiff then “limped and hobbled into healthcare” where Nurses Bedient and Bergh “were ‘on duty.'” (Id.)

Upon Plaintiff's arrival, “[n]o vitals were taken.” (Id.) Plaintiff described “what had happened [with his knee]” and indicated that it had happened “twice before.” (Id.) Nurse Bedient stated, “What do you want me to do about it, ” and then stated, “It looks fine to me.” (Id.) Plaintiff asked for “x-rays, an M.R.I., [and] surgery, because [he was] in intense pain, ” explaining “this knee is ‘messed up.'” (Id.) Nurse Bergh stated, “It looks fine to me, ” and Nurse Bedient stated, “No. You don't need any of those things.” (Id.) Plaintiff asked to be referred to PA Westcomb, so that she could “make that decision.” (Id.) Nurse Bedient indicated that she would not refer him to the PA. (Id., PageID.6.) When Plaintiff asked what he should do if his knee locked again, Nurse Bedient replied, “Go back to your cell and just deal with it.” (Id.)

A few days later, Plaintiff “saw Nurse Bergh on the walk, ” and told her that he “was in a great deal of pain and was having trouble walking and needed to see the PA.” (Id.) Approximately one week later, Plaintiff was seen by PA Westcomb. (Id.) After Plaintiff described his symptoms, PA Westcomb “[g]uessed that the injury was a ‘pulled' muscle or a tendon problem.” (Id.) PA Westcomb provided Plaintiff “with a few pages of stretches” for his leg, and she indicated that she would “set up” an x-ray. (Id., PageID.7.) PA Westcomb explained that “Corizon's and MDOC's policy is[] an ‘order' of tests must be done (per policy) before the next test.” (Id.)

“A few weeks into September 2020, no follow-up appointments were made, no pain ‘meds' were given, and no x-rays were done.” (Id.) Plaintiff then saw PA Westcomb “on the walkway, ” and told her that his knee was “hurting badly.” (Id.) Plaintiff asked when he would be scheduled for an x-ray, and he “was told, ‘It isn't going to happen[] [b]ecause the prison will not allow the x-ray tech into the prison[] due to COVID-19.'” (Id.)

Subsequently, “[a]t least[] once per month (September, October, November), ” Plaintiff's knee “locked up.” (Id.) “Because the Healthcare Department would not help [Plaintiff], ” his “only cure” was to “smack” his knee. (Id.) Each time Plaintiff's knee locked, “[t]he pain was worse, ” and it “took longer to ‘unlock' the knee.” (Id.)

On December 12, 2020, “while outside, on the basketball court, and while doing push-ups, . . . Plaintiff's knee ‘snap-locked into a bent position.'” (Id., PageID.8.) Plaintiff's pain level was a ten on a scale of ten, and Plaintiff was taken to medical in a wheelchair. (Id.) “Nurses Wright and Bergh were ‘on duty.'” (Id.) The nurses “asked what happened, ” and Plaintiff “gave a four (4) month history of the injury and the current situational report.” (Id.) Then, “[t]he nurses asked him to pull up his pant legs so they could observe both knees.” (Id.) Nurses Wright and Bergh indicated that there did not appear to be any swelling. (Id.) Plaintiff explained “that it was most likely ligament damage and there would not be swelling.” (Id.) The nurses then said, “It is Saturday, it is late, and there isn't anybody on staff after 8:00pm. We are going home soon and there is nothing we can do for you.” (Id.) When Plaintiff asked what could be done for his knee, the nurses replied, “We can't do anything about that. Go back to your cell and fix it yourself.” (Id., PageID.9.) They then “sent the Plaintiff out of medical with his knee still ‘locked up' and in unbearable pain.” (Id.) Before he left, Nurses Wright and Bergh “did tell the Plaintiff . . . that they would ‘come by' the following morning . . . to ‘check' on the knee.” (Id., PageID.10.)

Thereafter when he was back in his cell, Pla...